A. Law in the time of Corona
Extraordinary times are upon us, foretelling a period of massive social, political and economic dislocation and change. Countries around the world have been put on a war footing to combat a virus that is causing the biggest peacetime lockdown and immobilisation of population in living memory.
The economy will surely be a casualty in these unprecedented upheavals. Globally many businesses will be forced to close down making millions of people jobless and destitute in the coming months.
Malaysia’s newly-installed government eager to prop up its popularity with its worried, wearied and physically-restricted masses, has issued statements through the Ministry of Human Resources (MOHR) that companies must not cut staff salaries or retrench workers during the period of Movement Control Order (MCO), which tentatively is now extended by another two weeks to 14 April.
B. Hire and Fire
The law used to give Employers, as a corollary to their entrepreneurial risk-taking, the right to hire or fire workers as they pleased. Such capriciousness and not to mention callous disregard for the welfare of workers were reasons for Karl Marx labelling law as a capitalist tool of oppression and exploitation.
These days in times of greater social enlightenment and media, companies can of course still be free to allocate manpower and resources to maximise profit but they are required by law to have just grounds and genuine reasons before terminating a worker.
The only accepted lawful grounds for termination are misconduct and poor performance.
Under section 20 of the Industrial Relations Act 1967, an employee who finds himself unfairly dismissed by his employer without just cause or excuse, may complain to the Director General of Industrial Relations within 60 days from the date of his termination to get his job back or alternatively be paid compensation for losing his job.
The Government has even gone as far as judicially pre-empting in the MOHR’s website FAQs of 20 March 2020 (‘ the Guidelines’) that staff cannot be terminated on the grounds of ‘frustration’ of employment since the MCO does not involve a long period of disruption to their contractual relationship!
Seriously? Are you kidding me?
So what can Employers and Companies legally do when they are squeezed between continuing costs and zero or disappearing incomes during the MCO and even after?
C. Reducing Hours and Salaries
In clause 23 of the Guidelines, MOHR says that before any company is allowed to lay off staff, it should try to delay or avoid it altogether by first reducing their duties, shortening their work hours, suspending operation or cutting their salaries.
Salary is understandably a vital term. It is an important term binding on every employer who has promised in the contract of employment the remuneration the employee can expect to receive for the job and services he renders to the company.
Workers’ pay is protected by the Employment Act which prohibit companies from making any deduction from monthly salaries except under limited circumstances or for statutory payments such as EPF. Although, interestingly, salary can also be deducted of an employee for time he has stayed away from work due to imprisonment and custodial detention.
A cut in salary would be a crucial change to a key term in the contract of employment that requires the employee’s consent.
Any company contemplating cutting salaries should first discuss the plan with the employees giving them details and reasons for such a move and getting their signed consent. The proposed cut in salaries should be non-discriminatory. It should ideally cut across all ranks and positions by taking into consideration factors such as job scope, amount, length of service and contribution.
No business can be expected to run for long and meet its overheads and costs including the salaries it pays its staff unless it has recurring and sustainable income.
It is socially responsible and admirable of MOHR to exhort and direct on its website and online videos that companies keep their staff and salaries throughout the MCO period.
But in the end it will be the realities of the market and on the ground that force upon employers the hard decision finally to let their workers go.
Technically, a retrenchment is by law only allowed to take place in a situation of redundancy when a company has more staff than it needs to remain profitable and in business.
There are requirements that are laid out in the Employment Act and its regulations ( for employees who are citizens and permanent residents earning less than RM2,000 per month) and provisions under the Code of Conduct for Industrial Harmony 1975 for companies undertaking staff retrenchment to adhere to.
That being said, the Guidelines admit that retrenchment is an employer’s right of prerogative but one that must be undertaken responsibly, in good faith and only as a last resort.
A party to a contract is excused from having to do what he has promised to do for the other, if something terribly big and unexpected turns out making what he has promised to do either impossible or unlawful to carry out. This is termed in law “frustration of contract”.
Given that employment is in essence a contract of supply of labour, it too can be affected by the doctrine of frustration which in Malaysia is found under section 57 of the Contracts Act 1950.
Since by this stage almost everyone agrees that the current Covid-19 pandemic is a global emergency of economy-shattering and society-changing proportion, the idea that employment like other types of contracts of supply can be frustrated by MCO is not a remote or fanciful one.
Not every company can operate away from its physical premises or location by ordering its employees to work from home. In dire times like this telling companies especially most SMEs to obey the MCO and the Guidelines is like sending a trainee Taliban on a suicide mission. For a company to give all their staff a one month or more paid staycation at a time of zero income and running fixed costs is committing financial harakiri.
It is respectfully proposed here that the current types of work or occupation (other than those classified by law as critical and essential industries) can be grouped under 3 rough categories:
1) Location bound – these are work that requires employees to be at the office or factory site to carry it out. Working remotely or at home is physically and conceptually either impossible or out of the question for the forseeable future
2) Location dependent – these are work that can potentially be done from home but physically and conceptually requires technological, mental and institutional changes to happen first in order to do so.
3) Location flexible – these professions and jobs do not require a specific site and can be performed on a lap top anywhere including in a cafe or on the beach at the sound of lapping waves.
A reasonable case can be made that employers in categories ( 1) and ( 2) can justifiably treat their staff’s employment as frustrated if their work premises are forced by MCO to close – an act of government that clearly is beyond the employer’s control or calculation that affects business radically or fundamentally.
This can happen not just during the MCO when it is both impossible and unlawful to work, but also after. The end of MCO does not mean the end of the Covid-19 pandemic. When MCO is lifted, other forms of legal, social or health restrictions could still be in place then rendering the contracts of employment radically and unexpectedly different from what they were meant to be originally.
There are already a number of case law in both Malaysia and especially in England supporting frustration of employment under exonerating circumstances.
The Appeal Tribunal in the case of Spencer v Paragon Wallpapers (1977) allowed the frustration of employment contract of an employee on the grounds he wasn’t able to report back to work in a mill north of Manchester due to prolonged illness at a time when his company faced with increased customers orders was in urgent need of his service. In a careful judgement read out by Phillips J. the English court has this to say:
" It is obviously a hardship to any employee to be dismissed when he has been absent due to illness for only a few weeks ...Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all circumstances, the employer can be expected to wait any longer and, if so, how much longer?"
This too is the question a lot of SMEs are asking, especially after they are informed that under the Government’s recently announced RM250 billion Economic Stimulus package only RM600 per month will be paid for three months to company for each staff earning a monthly salary of less than RM4,000 that it retains on full salary and not retrench.
by Kerk Boon Leng & Rean Chang